WILLOW INVESTMENT v MBOMBA NTUMBA AND ANOTHER 1996 TLR 377 (HC)

WILLOW INVESTMENT v MBOMBA NTUMBA AND ANOTHER 1996 TLR 377 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mapigano J

B

MISC CIVIL CAUSE 34 OF 1996

13 September 1996

Flynote

Civil Practice and Procedure - Recognition and enforcement of foreign judgments -

Jurisdiction C of court where provisions of Foreign Judgments (Reciprocal

Enforcement) Ordinance, Cap 8 of the Revised Laws inapplicable - Common law

applicable - Under common law, enforcement must be sought by bringing an action

on the debt. D

-Headnote

The applicant sought the review of orders made in regard to the registration of a

judgment granted in Zaire. The applicant contended that the Foreign Judgments

(Reciprocal Enforcement) Ordinance, Cap 8 of the Revised Laws, was inapplicable

and that certain irregularities attended the registration which rendered it invalid. E

Held:

(i) The provisions of Cap 8 were inapplicable. This however did not imply

that the Court lacked jurisdiction to enforce a judgment given in Zaire. The Court's

jurisdiction to enforce judgments given in foreign countries emanated from F

statutory law, common law and treaties. In the absence of any such written law and

treaty in relation to Zaire, judgments of that country were enforceable at common

law in Tanzania on what had come to be known as the doctrine of obligation.

(ii) A judgment creditor who sought to enforce a foreign judgment at

common law could not do so by direct execution of the judgment: enforcement had to

be G sought by bringing an action on the debt. The proceedings instituted in the

present matter were bad as they did not comply with this requirement.

Case Information

Registration of judgment, attachment and sale set aside. H

Maira for the applicant.

Nassor for the respondents.

[zJDz]Judgment

Mapigano, J:

Four companies figure in this matter. They are Willow Investment, OCS and

Gecamines I which are resident in Zaire, and one called Marina Metal Works which

is based in Kenya. Willow Investment

1996 TLR p378

MAPIGANO J

obtained a judgment in Lubumbashi for a colossal sum of US$336,073,260.00 against

A OCS to which Gecamines is admittedly indebted to the tune of US$69,048,051.59,

and that is the genesis for this case.

Upon an application brought by Willow Investment the foreign judgment was

registered B by this Court on 9 August 1996, and on 15 August 1996 an order was

made for the execution of the decree by attachment and sale of movable goods

belonging to Gecamines which were lying at the Dar es Salaam port. The order was

carried out and the goods were purchased by Marina Metal Works. The application

was made under the C Foreign Judgments (Reciprocal Enforcement) Ordinance, Cap

8 of the Revised Laws and this Court proceeded on the footing that the Ordinance

was applicable.

The Ordinance is designed to facilitate the direct enforcement of certain foreign

judgments in Tanganyika. As the preamble says, it makes provisions for the D

enforcement in Tanganyika of judgments given in foreign countries which accord

reciprocal treatment to judgments given in Tanganyika, for facilitating the

enforcement in foreign countries of judgments given in Tanganyika, and for other

purposes connected E with such matters. It was passed in July 1935. In its original

terms s 3(1) provided that if the Governor in Council is satisfied that substantial

reciprocity of treatment would be accorded by a foreign country in respect of

recognition and enforcement of judgments given in the superior courts of

Tanganyika, he may by order direct that Part I of the Ordinance be extended to that

country. F

By virtue and exercise of those powers the Governor in Council extended the benefits

conferred by Part I to judgments given in the superior courts of the countries

specified in the schedule to GN 8 and 9 of 1936. The power conferred on the

Governor has passed G to the president in due course but the countries to which the

benefits are extended have remained the same to date.

By s 4 a judgment creditor under a judgment to which Part I applies, may apply to the

High Court to have the judgment registered in the High Court, and unless any of the

circumstances stipulated in the Ordinance obtains the Court is obliged to order the H

judgment registered. A judgment so registered is for the purposes of execution of the

same force and effect and subject to the same control, and proceedings may be taken

thereon, as if it had originally been given in Tanganyika. I

Gecamines is aggrieved by all the orders that have been made in regard to the

registration of the judgment, the attachment of the

1996 TLR p379

MAPIGANO J

goods and the sale of the same. It has applied for the review of the orders and the A

application is brought under the provisions of Order 42 of the Civil Procedure Code.

Two material grounds have been submitted in support of the application.

The first ground is that the Ordinance, ie Cap 8 is inapplicable, and reference has

been B made to the provision of s 3 and GN 8 and 9 of 1936. It is accordingly

submitted that this Court has no jurisdiction to order a registration of a judgment

given in Zaire and that, therefore, both the registration and the sale should be set

aside.

The second ground is urged on the basis of a supposition that the provisions of the C

Ordinance are applicable. It is that the registration and execution orders are impaired

by palpable irregularities. The first point urged by Mr Nassor for Gecamines is that

the existence of the conditions laid down under s 4(1) were not established. This has

reference to the proviso that a judgment shall not be registered if at the date of the D

application it has been wholly satisfied or it could not be enforced by execution in the

country of the original court. In the counter-affidavit filed by Gecamines Mr

Mutshipanguhas has deposed, vide para 3, that to the best of his knowledge the law in

Zaire forbids the attachment of goods belonging to a parastatal body and that E

Gecamines is one such body. Mr Nassor has cited s 88 of the Tanzania Railways

Corporation Act, 1977 to substantiate his assertion that such situation is not peculiar

to Zaire.

Secondly it is said that there was a non-compliance with the provisions of Rule 8 of

GN 15 of 1936, which rule imperatively calls for the service of a written notice of the

F registration of such a judgment on the judgment debtor which notice should also

tell him that he has a right to apply on the grounds prescribed in the ordinance to

have the registration set aside, and state the period within which he may do so. G

Thirdly, it is contended that the Court went wrong when it ordered the attachment of

Gecamines' property without giving due notice to Gecamines and affording it proper

opportunity to be heard.

On behalf of Willow Investment Mr Maira has conceded that the Ordinance is H

inapplicable. But to him that does not in any way connote an absence of jurisdiction

for the High Court to enforce the judgment. He has maintained that art 108(1) and (2)

and s 2 of the Judicature and Application of Laws Ordinance, Cap 453, give the High

Court power to order the registration and enforcement of the judgment in accordance

with the I common law. He has suggested that the registration should have been

sought and ordered under

1996 TLR p380

MAPIGANO J

s 95 of the Civil Procedure Code, and that the mistakes made in the registration and

A enforcement of the judgment are mere irregularities.

Mr Maira has pointed out that Gecamines has been coupled in the proceeding not as

Willow's judgment debtor but basically as Willow's judgment debtor's debtor, and

that as B such Gecamines had no right of audience before the attachment was

ordered. Counsel has referred this Court to Rule 45 of Order 21 of the Civil Procedure

Code which provides for the attachment of debts which are due to judgment debtors.

C

With regard to the sale Mr Maira has contended that as innocent purchaser of the

goods for value Marina Metal Works cannot be prejudiced by whatever flaw that has

attended the registration and sale of the goods. His authority is Rule 76 of Order 21 of

the Civil Procedure Code, which, I think, is better read along with Rule 2 of Ord 75.

Mr Nassor D has countered by arguing that there is no occasion for this Court to

invoke the provision of Rule 76 of Order 21.

It seems to me most of Mr Nassor's arguments are irresistible. I must agree that the

provisions of Cap 8 are inapplicable. That does not, however, imply that this Court

lacks E jurisdiction to enforce a judgment given in Zaire. The effect of s 8 of the

Ordinance to which my attention has been drawn is merely that where a judgment is

capable of registration under the Ordinance the judgment creditor is barred from

instituting any other kind of proceeding for its enforcement, such as an action upon

the judgment or a suit on the original cause of action. F

The jurisdiction of this Court to enforce judgments given in foreign countries

emanates from statutory law, common law and treaties. In the absence of any such

written law and treaty in relation to Zaire, judgments given in that country are, I

think, enforceable at G common law in Tanganyika on what has become to be

known as the doctrine of obligation. In accordance with that doctrine, where a

foreign court of competent jurisdiction has adjudicated a certain sum to be due from

one person to another, the liability to pay that sum becomes a legal obligation that is

recognised and enforceable in H Tanganyika. The foreign judgment is strictly not

enforceable as such, but is to be regarded as creating a simple contract debt

enforceable by an action of debt. Once the judgment is proved, the burden would lie

on the judgment debtor to show cause why he should not perform the obligation.

This is consistent with s 11 of the Civil Procedure I Code.

It follows that a judgment creditor who seeks to enforce a foreign

1996 TLR p381

MAPIGANO J

judgment at common law cannot do so by direct execution of the judgment. A

Enforcement must be sought by bringing an action on the debt. The procedure

obtaining in England would serve as a model. The evidence would be on affidavit and

the defendant should be given proper opportunity of showing cause why the foreign

B judgment should not be recognised or enforced. If a decree is ultimately passed in

favour of the plaintiff, he may proceed to execute it in Tanganyika in the manner

provided by the Civil Procedure Code.

For the foregoing reasons I have to hold that the proceeding for enforcement of the

judgment was bad altogether. C

The position of the purchaser should be viewed in the light of the fact that there was

no valid legal basis for the attachment of the goods. With due respect to Mr Maira, it

is in my opinion a completely wrong idea that the provision of Rule 76 of Order 21

avails D Marina Metal Works. The scope of that rule is obviously limited. The rule

pertains to only irregularities attending the mode of publishing and conducting the

sale of the goods by public auction. It presupposes pre-existence of valid orders for

attachment and sale. As, I think, sufficiently demonstrated, the mistake here is basic.

The mistake fatally affects E the validity of the registration and enforcement of the

judgment.

It is right and fair to grant this application. In the final event the registration of the

judgment as well as the attachment and sale of the goods are set aside, and Gecamines

will have its costs. F

1996 TLR p382

A